December 05, 2017

Mostly for Byomtov Open Thread

-by Sebastian

This last week was the Bridge Nationals in San Diego. So of course I went.

I won a few side events (yay!) but the best moment was from an event I didn't win. Bridge is one of the few games where if you want to you can enter to compete with the very best in the world. I entered the Reisinger--the prestigious Board A Match team game which attracts most of the top teams in the world. My team's goal was to be not last. We played against all of the top teams in the world and ended up only two and a half points below average. We beat almost half the field. In analogy with more common sports, it would be like a high school team entering March Madness and winning their first two matches. We missed the cut for the next day by a mere 4 points.

Only Byomtov is going to understand how exciting that is, but it was exciting.

This is your MOSTLY open thread, but there is a restriction: the word "trump" may only be used in this thread in reference to card games.

Gay Wedding cakes just aren’t really important cases therefore if someone (no matter how idiotically) is strongly opposed to making them we shouldn’t make it illegal for them to bow out.

Just to expand on what cleek said, are we going to create a list of what is "important" (at least, important enough)? Because there is no way to say that getting service at a lunch counter makes the cut. Just to take an example from the Civil Rights era.

Pretending that we can’t distinguish between cardiologist and wedding cake baker is just pretending.

no, it's illustrating the fact that you now need a line somewhere (like wj said).

how about dentist?

teeth are important. living with a broken tooth is agony. could an orthodox Jewish dentist refuse to work on the teeth of someone who was going to use them to chew pork, no matter how much agony the patient was in?

if you open a public business, serve the public. period. no other scheme works. everything else leads to discrimination, arbitrary line-drawing, people trying to skirt the rules, and potential hazards.

could an orthodox Jewish dentist refuse to work on the teeth of someone who was going to use them to chew pork, no matter how much agony the patient was in?

For that matter, could he refuse on the grounds that they had been (or even just might have been) used to chew pork? Which religious restriction's might be reasonable, and which are not? For that matter, how do you tell if someone's "religion" is real, as opposed to having a "theology" crafted for no other purpose than to enable legal bigotry?

Clearly the line has to get drawn somewhere. We can thrash out some general position. Or we can just keep making ad hoc decisions and end up with a total kludge -- which provides full employment for lawyers (because nobody else can keep track of what the exact rules are), but is otherwise useless.

Its a bit cheesy, but I don't want the last comment on the other page getting lost so I'm repeating it:

Similarly if a gay wedding cake maker doesn’t want to make one for a Dominionist wedding, I’m fine with that *even though religion is a protected class*. If a black photographer doesn’t want to shoot for a white power rally he should be able to say no *even though race is a protected class*.

And to make the analogy with the black photographer clearer in case people don’t know the facts of the case, the cake maker makes birthday cakes for gay people. It isn’t that he won’t work with gay people. He won’t work with gay weddings.

Wj "Clearly the line has to get drawn somewhere. We can thrash out some general position."

Exactly. But that doesn't mean the general position has to be "everyone has to pretend that every possible service is vital enough to force them to do it in situations that violate their principles". There are lots of other general positions we could take.

"Or we can just keep making ad hoc decisions and end up with a total kludge -- which provides full employment for lawyers (because nobody else can keep track of what the exact rules are), but is otherwise useless."

This is of course the problem with taking everything to court instead of hashing out fair exemptions in the legislature. If the legislature had done that, we still might be litigating the edge cases of whatever the exemptions looked like, but the court wouldn't be faced with cases on the "obviously trivial and I can't believe we've made a federal case out of this services" side of the spectrum and then forced to come up with some kludge to cover it.

The black cakemaker shouldn't have to do Klan weddings. They just shouldn't have to. But a black surgeon should have to patch up the Grand Wizard having a heart attack. Because surgery is important and wedding cakes aren't. We are capable of distinguishing between those two ideas.

We are also capable of distinguishing off the shelf goods and custom made goods. Just exchanging stuff that you bought from a wholesaler for money is different than contracting to work with someone on something. We are capable of distinguishing between those two ideas.

If you are a gay couple who gets turned down by a wedding cake guy, by all means tell your friends. Then, find someone who will put love into your cake and around your wedding instead of turning it into a discrimination suit. We really could live in a society like that. It would be better than this one.

It's really easy to distinguish between heart surgery and wedding cakes. It gets less easy to distinguish between overnight accommodation and dinner. And it gets less easy to distinguish between hospitals and other public accommodations that have religious affiliations and those that don't.

So, it's not always quite so obvious. We therefore end up having to draw lines.

And different jurisdictions draw different lines. In general, the law requires folks who offer public accommodations to not discriminate. At least against protected classes of people. But the federal definition of a public accommodation doesn't always or even often match that of individual states or other municipalities.

So, even when we have lines, the lines are not consistent or clear cut.

I am, personally, not hostile to religion. By "not hostile" I mean I actively participate in a religious community, and a fair amount of my personal attention and resources are directed to that.

I am also not hostile to public institutions respecting the unique needs and requirements of individual faith and conscience, whether religiously inspired or not. By "not hostile", I mean I consider those things bedrock reality, more so than national or political affiliation.

However I am also suspicious of cases where people's religious convictions end up limiting the life, liberty, and pursuit of happiness of *other people*. It seems to me that the burden of accommodating your own personal conscience properly belongs to *you*, the owner of the conscience, and not to everyone else in the world who may or may not share your convictions.

And I'm also suspicious of cases where "religious conviction" expands into spheres like adherence or non-adherence to laws about what an employee's compensation must include, or spheres like the creative prerogatives of cake baking for hire. The "exercise of religion" is normally not construed to include contributing to employee health insurance, or icing cakes.

The RFRA was originally passed to protect the rights of native Americans to consume peyote as a sacrament. Peyote is a controlled substance, and its use is against the law. But taking peyote is also an ancient religious practice, going back hundreds or thousands of years.

Eating peyote to stimulate religious ecstasy is actually a sacramental religious practice. It's part of the exercise of a native American religion.

Baking cakes is not.

I'm fine with gay people who are refused service just shrugging it off and getting on with their lives, if that's what they want to do. I'm also fine with them making a stink about it, if that's what they want to do, because unless somebody does that nothing ever changes.

And, in fact, the same request could be made of the religious people. Why not just bake the freaking cake and move on?

It's hard for me to see why one side's needs should outweigh another's.

There isn't an easy answer here, but I don't think that just blowing it off is a great approach either.

"In general, the law requires folks who offer public accommodations to not discriminate. At least against protected classes of people. But the federal definition of a public accommodation doesn't always or even often match that of individual states or other municipalities."

Yes but the FEDERAL definition of public accommodations (and common carriers) is essentially the definition I'm using that you seem to think is totally unworkable. I mean it isn't perfect, but this cake case and the photographer case *wouldn't exist under the federal rules*.

I'm ok with broader state rules, but then they have to face up to broader problems with constitutional rights (both expression and religion). They COULD deal with that by really wrestling with how to navigate those things, but in practical reality they haven't bothered. They just say "everything is a public accommodation". The problem with that is that the Supreme Court identified all sorts of reasons why actual limited understandings of public accommodations were strong enough to defeat pretty much any expression or religious 1st amendment objection. That reasoning doesn't apply to "everything with a storefront".

And I don't see this as a strictly religious thing at all. "Religious Objections" are a subset of "Strongly Held Objections" which are protected under freedom of expression. That is why I use examples that don't have a religious objection (i.e. black photographer/Klan rally).

I think there is a world where you would not write code for a KKK leader. Period. You write code, his beliefs are so abhorrent you would not lend your efforts to that. How do you refuse that?

Baking cakes is not any different than writing code. It's not a public accommodation. Nor is taking pictures. Nor is doing flowers arrangements. Just because I have an office doesn't mean I have to work for you, for any reason I choose.

The big lines are easy restaurants, bars, taxis, trains, buses, planes, actual public accommodations. You are not asking the owner to create anything, you order off the menu, buy a ticket, give them the address, your holding yourself out to provide a public service. Not offering to do specialised work for hire.

None of this is complex except people disagree wwith other people's beliefs, and now we believe all those disagreements are court worthy. They are not IMO.

I'm fact, this case isn't even close. I'll bake you a cake but I won't create a wedding cake. Those are really different activities. My father was a baker who specialized in fancy cakes working weekends for a local bakery. He eventually would only make wedding cakes for his closest friends and family because of the time and effort it took to do it well.

Yes but the FEDERAL definition of public accommodations (and common carriers) is essentially the definition I'm using that you seem to think is totally unworkable

What I think is, not totally unworkable, but intensely problematic, is not so much drawing a bright line, but the number of bright lines needed.

Which kinds of businesses or services are allowed to discriminate, which are not. What is the basis for deciding which are allowed and which are not. Why is one basis more compelling or legitimate than another.

Which are legitimate reasons for discriminating, which are not. What is the basis for deciding which are legitimate and which are not.

Etc etc etc.

The fundamental problem is not that one party has rights and the other doesn't. The problem is that both do, and they conflict.

So, lawsuits. That's how we do stuff like that. It's better than shooting at each other. But it is complex, and litigious, and adversarial, and divisive, and expensive, and difficult.

I guess we could work around it by having folks who are discriminated against just let it go. But then they would continue to be discriminated against.

So, unworkable. At least for any acceptable result.

Mostly, I feel like the cake baker is making a Great Big Point. So is the gay couple, but I guess I personally find their point more compelling.

They are asking to be included in public life, at the most basic and fundamental level.

The baker's issue seems, to me, considerably more attenuated. He's not being asked to marry a man, he's not being asked to approve of two men (or women) who want to marry, he's not being asked to attend the wedding. He's being asked to make a cake, the same cake he makes for anyone else who asks.

So, to me, the couple's argument is more compelling.

Frankly, if I was half of the gay couple, I'd probably just say screw it, let's just get another baker. Who needs the heartburn.

" the Court had held that religious beliefs did not excuse people from complying with laws forbidding polygamy, child labor laws, Sunday closing laws, laws requiring citizens to register for Selective Service, and laws requiring the payment of Social Security taxes."

Is it plausible to argue that the black photographer can refuse the KKK business not because he doesn't share their beliefs, but because those beliefs are actively hostile to the photographer - even to the point that there is some non-negligible physical danger?

I don't like the whole religious beliefs excuse, because I don't know where it ends, if it does. Could a devout Christian baker refuse to bake a cake for a civil or Jewish heterosexual wedding, because of a belief that only Christian marriages are legitimate?

What we learned from the Hobby Lobby case is that the official religious position is that an "undue burden" is whatever the believer says it is. That doesn't seem sensible to me.

I'm potentially available as a contractor in my area of technical expertise. I think I should be allowed to accept or decline an offer for any reason or none, and I should be allowed to vary my rates as I choose.

Meanwhile I'm developing a website which may at some future time require payment for access to some new material. I think I should not be allowed to refuse custom from any particular person for any reason other than misuse of the website.

In general, I think one should be allowed to discriminate as one pleases when providing a bespoke service. But not when one is selling essentially the same thing to many customers.

So a baker should be obliged to sell an off-the-shelf wedding cake to any (reasonably behaved) customer who asks for it. But he should be able to decide for himself what bespoke cakes he makes.

In this context, hotels provide an off-the-shelf service. Medical care is in its own category.

byomtov: Is it plausible to argue that the black photographer can refuse the KKK business not because he doesn't share their beliefs, but because those beliefs are actively hostile to the photographer - even to the point that there is some non-negligible physical danger?

I would like clarification here. My understanding is Sebastian is arguing that the black photographer can't refuse the KKK business on the grounds that the KKK is white, because race (whiteness as much as blackness) is a protected class.

But I would like to hear the legal reason why the black photographer can't refuse to do business with the KKK because she finds their political views to be deplorable. Believing in white supremacy is not the same as being white. Refusing to have anything to do with assholes (who happen to be white) is not the same as refusing because they're white.

In general, I think one should be allowed to discriminate as one pleases when providing a bespoke service. But not when one is selling essentially the same thing to many customers.

I think this constitutes a reasonable standard.

I would note that, because he rejected their business before even finding out if they wanted any customization (if I have the facts of the case straight), the baker in this case would be out of luck.

That is, he can refuse to write God bless this gay wedding" on a cake. But just refusing to sell them, or even discuss selling them, a generic cake? Since it doesn't require him to do anything special, he's out of luck on that.

IOW, if the black photographer works with white people on a regular basis, but refuses to work with people (of whatever color) who think she should be lunched, is the latter legally defensible?

I would say no. Insofar as the business is open to the public and takes advantage of the amenities (public safety, rule of law) provided by said public and incentives (cf limited liability), then they should serve all who walk thru the door, even those whom you find to be reprehensible.

On the other hand, if said customers were a threat to public health or safety....well, all bets are off.

bobbyp, I'm specifically asking about the law, and I'm not clear whether your answer addresses that. You say what you think "should" happen; I want to know what would happen legally, from someone who knows the legal ins and outs better than I do. Are you a lawyer? Not being snarky, just trying to clarify where your reply is coming from – whether it’s an opinion based on legal knowledge or not.

First of all, right now, legally (and the lawyers can correct me if this is wrong), I believe that you can actually refuse to serve anyone you please as long as it’s not on the basis of the person belonging to a protected category. I’m pretty sure that if I had a restaurant, I could refuse to serve Red Sox fans. Let’s just say. ;-)

Whether that’s what I *think* I should be allowed to do, I’m pretty sure that’s what I *am* allowed to do.

But given your reply, here’s a bit of further nuance/speculation.

A photographer falls into the category that people are talking about where there's a "bespoke" service being provided. A photographer (ditto a baker of specially designed cakes) is quite possibly in the position of turning away clients all the time for the simple reason that you can only do so many photographic shoots in a given day/week/etc., and so you have to pick and choose whom you want to work with.

I'm not positing a situation where the photographer has a shop where anyone can walk in off the street and buy something off the shelf. In that situation I think you should have to serve all peaceful comers, although I think I’d still make an exception for people who come in and are offensive assholes.

I'm also not positing a situation where the photographer has said, "I won't work with white people." That clearly violates the "race is a protected class" feature of the law. I guess I might be saying that if the photographer just keeps her mouth shut, who can say why she takes some clients and not others?

In general, I think one should be allowed to discriminate as one pleases when providing a bespoke service. But not when one is selling essentially the same thing to many customers.

trains and buses and planes provide the same thing to many customers: fixed endpoints, on a schedule, to a group of people. but a taxi driver is providing a completely bespoke service: every ride is custom. the fares are set, but the endpoints are unique and the routes are (generally) completely up to the driver.

Those of us who live in biggish towns and major cities can often count on The Free Market to furnish non-bigot competitors to bigoted vendors. The hard case, to me, is the small town -- the kind where Real Murkins come from.

I don't know how to help a poor Kleagle of the KKK who has the misfortune to live in a town where the only barber is a Black Panther, or an openly gay homeowner whose only local plumber is a Christianist homophobe.

"Just move to another town," may be practical advice but it feels like a surrender to the forces driving The Great Sort.

Constructing national anti-bigot policies is evidently difficult. Enforcing them, especially in the small towns where they are most needed, seems really difficult.

"Just move to another town," may be practical advice but it feels like a surrender to the forces driving The Great Sort.

Very true; and yet I'd have very little problem telling Mr. Bigot D Baker to do exactly that (or find a different line of work) if the people in his current neighborhood are ones that he does not wish to serve.

But that's because I am, at root, a very BAD person, who would just love to face-cake Mr. Bigot D Baker with a cake lovingly filled with The Gey. Not pie, though. Pie is for eating.

I guess I disagree with this. Not just disagree, but IMO this is actually exactly where the bright line is.

To me, having a storefront implies that you are open to all custom. I.e., anyone can walk in. Again, to me, if anyone can walk in, than anyone should be able to assume they will be served.

It's the basic idea of participating in a *public* space.

Bespoke services generally don't operate on that basis. People don't walk in to an attorney's office, or an interior designer's workspace, or a bespoke clothier's atelier, and expect that they will necessarily be served. They might not. The proprietor might not have time, or what they are asking for might not be in the proprietor's normal range of offerings. The proprietor might simply not like them and not want to have them as a client.

If your door is open to anyone and everyone, there is a different assumption. And it is, again IMO, harmful to basic public life for people to be denied service for some personal quality or other.

I'm not talking about rules like "you have to wear a shirt". We all know the category of things I'm talking about.

IMO, if the bakery sold cakes to anyone who walked in the door, they can't say they don't want to sell a cake to gay people. If they sell wedding cakes to anyone who walks in, they can't not sell a wedding cake to a couple because they're gay.

Because it's not freaking fair to say you're open to all custom, if you're not.

If the wedding cake business was a custom order thing, then probably a different story. Not clear to me which scenario applies here.

But to my eye, the storefront - the door that is open to one and all, with the expectation that anyone can walk in and be served - is exactly the bright line.

Maybe a simple way to articulate the line is if a contract is involved. No contract required, you're open to general public custom. No discrimination based on the personal qualities of the customer. If a contract is required for rendering services, the seller can decline, for whatever reason they like.

Basic contract law: a contract is always involved when there's buying and selling.

There are a few rules with regard to some contracts. Common carriers, civil rights act, anything Congress passes before a contract is actually entered into ...

So, you walk into Walmart, there's an implied contract when you buy something there. It really doesn't matter how generic it is.

Cake makng art? It depends. If every cake is different, okay. If there are a set of 'artistic cake products', not so much. If the client (not customer) has this "vision" and commissions the cake artist to realize it in the icing, okay.

I went to a wedding once where an artist (who mostly does noncake art) actually produced an artistic icing thing. The artist in question was doing this for his daughter's wedding - so yeah - it's possible!

No, I am not a lawyer. My post was my thoughts on what should be the case.

As I understand it, antidiscrimination law covers protected classes, as defined by the EEO, from discrimination wrt to housing and employment. White people are not a protected class. The KKK is not a protected class. Red Sox fans are, thank god almighty, not a protected class.

To my way of thinking, the same framework should apply throughout the public square, including 'bespoke' services. It may not do so in current federal law, but this does not appear to similarly restrict state laws which expand the applicability of discrimination law to other realms.

Consequently I view the baker/florist (or similar professional services) defense of discrimination on religious freedom or freedom of speech grounds to be utterly spurious....as a matter of law.

One may argue that such a standard pushes the limit of applicability beyond that which is reasonably effective or enforceable (Tony P abv.).

Neither are black people, as such. It's "race" that's the protected class, not "blackness" or "Asian-ness" or whatever. White people are protected against discrimination on the basis of their being white just as much as black people are protected etc. White people just don't usually need it. (I find this use of the word "class" to be weird and misleading, but that's another conversation.)

Title VII of the Civil Rights Act of 1964 prohibits employers with at least 15 employees from discriminating in employment based on race, color, religion, sex, and national origin. It also prohibits retaliation against persons who complain of discrimination or participate in an EEOC investigation. Everyone is protected from race and color discrimination Whites, Blacks, Asians, Latinos, Arabs, American Indians, Alaska Natives, Native Hawaiians, Pacific Islanders, persons of more than one race, and all other persons, whatever their race, color, or ethnicity.

What I was trying to clarify was Sebastian's assertion that the black photographer couldn't refuse a commission from the KKK because the KKK is white and that would be discriminating on the basis of race.

My question/speculation/assertion is: The black photographer can refuse the commission on other grounds, i.e. that the KKK is a bunch of violent discriminatory shitheads. IOW, I don't think this example does what Sebastian wants it to do in relation to the cake case. Viewpoint is not a protected class for purposes of Civil Rights law.

Yup. My distinct impression is that usually it takes more that a single incident to demonstrate (illegal) discrimination. It takes a pattern of behavior.

Except when, as in this case, the individual stands up and says, explicitly that he is acting (more usually, refusing to act) on an illegal basis. If the baker had just said No, without giving a reason, he would have been fine -- at least for the moment.

wj: it looks very much like the baker(+outside parties) trying to gin up a fight, vs the couple (+outside parties) trying to punch back.

Yeah, show me a typical baker or newlywed couple with the resources to take their problems to the USSC. If it were just the people who were involved at the beginning, I'm sure that some reasonable accommodation would be reached; but now, they have to drag the entire country into their fight.

ONE cake in the face could solve this whole thing, just saying. And it's not as if newlyweds don't normally "cake-face" each other after the ceremony. So, love all 'round, amirite?

What, you don't think the national organizations keep an eye out for an appropriate case to test this kind of thing? I don't actually know, but I wouldn't be surprised if either the baker or the newlyweds or both aren't paying a cent for their legal representation.

I'm only skimming around, but it looks like one side has the Alliance Defending Freedom (love the name) and the other the ACLU, never mind the 100 amicus briefs Wikipedia mentions.

Weirdly enough, being both a gay person and a homeschooling parent, I used to get mail from both sides of this divide. I got on various gay-related mailing lists by my own choice, and on right-wing religious nutcase mailing lists by virtue of my info being sold by homeschooling outfits.

Strange experience. There were times when the letters could have been interchangeable except for a few nouns and pronouns ("Those bad people are going to hurt you unless you give us money!!") (Have I mentioned that I'm the tiniest tad cynical about non-profit fundraising?)

I also note that this particular cake maker won't make cakes for second weddings (not a fan of divorce), which makes me think it really is a limited idea of marriage thing not an I hate gays things.

Interesting. Does anyone happen to know whether this "policy" (not making cakes for second wedding) was known and/or on record prior to the gay wedding controversy? Or is there a chance it arose (or at least was articulated) post facto?

Oh I'm sure they are tangled up together--he has a strong view on appropriate marriages, both second marriages and gay ones. But if he turned away second wedding cakes I think it would tend to very strongly show that he thinks of making wedding cakes against his ethos as supporting marriages he doesn't approve of.

What I think about all of this is that (a) we all seem to have some intuitive sense that there is some line that folks should not be required to cross, and (b) we are hard pressed to tell where that line is.

What is important IMO is the ability for people to assume that they will have access to normal public life at some basic level. There needs to be some basic common understanding that things that are available to "us", and are presented as being available to "us", are available to all of us.

If the door is open, everyone should be able to assume they can walk through it.

Because otherwise life turns into a weird mesh of everyone negotiating their Strongly Held Convictions with everyone else on a case by case basis.

Which is no society at all. It might be libertarian heaven, but it will be a shitty place to live.

If you say you are open to all custom, then you need to be open to all custom. If you don't want to be open to all custom, then you need to be clear about that.

I don't know what the details are in this particular case. If the guy is only making wedding cakes to order, individually created for each client, I don't really have a problem with him picking and choosing who he wants to make his cakes for. It'd be nice if he would only market to folks he actually wants to do business with, to save other folks the annoyance or insult of having him inform them of his opinions about their personal lives, but whatever.

But if you open your door for anyone to enter, then you need to assume that anyone will enter. And you need to make yourself available for that. Because it's not other people's job to work around your personal quirks. That's your job, not theirs.

If that means you don't open a bakery, so be it. Find another line of work. People make decisions like that due to matters of conscience every day.

"If that means you don't open a bakery, so be it. Find another line of work. People make decisions like that due to matters of conscience every day."

Like not sleeping with the boss for example. Find another line of work. People make decisions like that due to matters of conscience every day.

But really, maybe it would be a better society if we didn't make people choose between their preferred line of work and violating their conscience when we can.

"If the door is open, everyone should be able to assume they can walk through it."

This seems to me just a class distinction. Upper class 'professionals' can always discriminate and get away with it because they can always say "this doesn't really fit my profile".

As someone who works for himself, it is a huge waste of everyone's time if you know you aren't going to work for someone and can't just say so. A big sentiment upthread seems to be something along the lines of "if he would just beg off for other reasons everything would be fine". But it is a huge waste of the gay couple's time for him to pretend to sit through a long session of cake tasting and decoration discussion when he knows "I'm just going to tell them that it doesn't fit with my artistic vision to get rid of them".

And maybe I'm just showing autism or something, but as someone who has wondered about why people say no to me at various points in my life, it would be much better to live in a world where the person says "I just don't do gay weddings" so I know which people are which rather than a world where every time a professional says 'no' to me I have to wonder if it were because I was gay.

Would it be even better to live in a world where no one cared? Of course. But that isn't what we get with these laws. We get a world where every time I get a no I have to wonder anyway.

A big sentiment upthread seems to be something along the lines of "if he would just beg off for other reasons everything would be fine".

I don't think we were saying (at least *I* wasn't saying) that it would be fine. I was just saying that, as a legal matter, he would almost certainly get away with it if he hadn't felt impelled to give his reason for not taking the job.

The only rational test is whether you can walk in order off a menu or point to what you want and buy it right then.

burgers are almost entirely bespoke, these days. certainly they are for me; since i don't eat ketchup or mustard or mayo, i'll never get a premade burger anywhere.

on which side of the line does pizza fall ? at most pizza places you can't walk in and buy it right then. ok, maybe they have slices, but maybe not. depends on the place. but if you're getting a full pizza, it's entirely customized and it takes time to make. you can walk in, but you have to wait.

surely a wedding cake can be much more complex than a pizza. is that the difference, the complexity of the design?

my local baker does custom cakes, but the range of options is rather small. they don't do decoration beyond rosettes. do they count? (they don't ask what the cake is for)

A big sentiment upthread seems to be something along the lines of "if he would just beg off for other reasons everything would be fine".

Like wj, I have to say: I never said this and I never meant it, I was writing quite specifically about "other reasons" as a legal matter and I asked about it explicitly as a legal matter more than once.

Legally, there is nothing to prevent me from refusing to serve Red Sox fans. Legally, I don't think there's anything to prevent me (if I were the photographer) from refusing to do projects for violent agitators, whether KKK or some variety of violent black nationalists (see SPLC website for more on that topic).

Your own (Sebastian's) example of the cake baker refusing cakes for divorced people and for Halloween speaks to "other reasons" playing a role.

wj has also pointed out that a "pattern" plays a role, and I think you yourself are relying on the "pattern" aspect when you say, in effect, that there's a "pattern" to the baker's refusals.

Could you quote someone (other than perhaps Marty, though I don't think he said this either) suggesting that it's a "big sentiment" that everything would be fine blah blah as a matter of their own opinion about what should be true, as opposed to "isn't this true legally?"

Civil rights laws specifically name both the categories they cover (race, age, etc.) and the activities they cover (employment, public accommodation, etc.). Neither is all-encompassing.

It seems to me that the bakery question could also be seen as a question of what's a public accommodation and what isn't, i.e., where do we draw that line (and a lot of the comments have to do with what people think should be the answer to that question). Or it could be treated (but I doubt it is/will be) as a question of whether sexual orientation becomes the first new protected class in Federal law in a long time.

I don't know about the pizza customs around where you are but to me even rather uncommon pizzas are put together from a limited list (menu). I have yet to see an establishment where you could ask "please make the anchovies form the words 'G#d hates bundles of twigs'" (and get taken serious) ;-)
On the other hand some cake designers have a catalogue to choose from where the only non-generic part is e.g. the name put on it.
At cakewrecks (http://www.cakewrecks.com/ ) there are many examples of what shameless liars those guys can be though (comparing what was in the catalogue and what got delivered).

The only rational test is whether you can walk in order off a menu or point to what you want and buy it right then.

This sounds fine to me.

And I would most definitely put restaurants in the category of if you walk in, you get served. I'm OK with rules like no shoes no service, I'm not OK with rules like you're gay, no service. Or you voted for Trump, no service, for that matter.

But really, maybe it would be a better society if we didn't make people choose between their preferred line of work and violating their conscience when we can.

Maybe it would be a better society if people could order a wedding cake (or whatever) without hearing somebody else's opinion about their personal life and eventual fate burning in hell.

Just saying.

Upper class 'professionals' can always discriminate and get away with it because they can always say "this doesn't really fit my profile".

So can plumbers. Class is not the issue.

Either there's a public sphere, or there isn't. There doesn't have to be, every single interaction between people can be negotiated just between them. But that is going to lead to a pretty crappy society.

If there is a public sphere at all, it has to be available to everyone.

This particular case is about baking wedding cakes. Who cares about that, right? I'm sure the couple can just someone else to bake their cake.

there are custom home builders in the US (elsewhere too, i assume) who will build you any house you want; give them the architectural drawings and they will build it. maybe they work for the architects, maybe not.

and then there are custom home builders who will build any house you want to build - as long as everything you want comes from options in their sales brochure. they know how to build these houses because they've built them before and all of are familiar and manageable for them.

sometimes 'custom' builders build houses without having a buyer first. they just build what they think will sell because it keeps their crews busy or they want to move a lot quickly, or whatever. but the house is sitting there finished, waiting to be bought.

they all call themselves custom builders though the degree of customization clearly varies.

but, should builders in any of these situations be legally permitted to perform morality tests on potential buyers?

To follow up on cleek, this bespoke versus off the menu is going to bump up against modern capitalistic trends. I read an article about a person who makes bespoke suits, and it noted that he can't scale up the business. It's just not possible. However, that is the general metric of success in business is can you get bigger. So if the bespoke business owner decides to put his or her menu on the net with a database back end to relieve the customer of having to be speaking every time they come in, that's just good business. But is it still bespoke?

I'm pretty sure I've told this story before, but I'll tell it again, because it seems apropos.

Early in their marriage, my parents drove from NY to GA. Mom was from NY, dad was from GA, they were living in NY, they went back south for a family visit.

They were getting close to my dad's home, but they were running out of gas. They pulled in to a gas station. The owner didn't want their custom because they had NY plates.

He apparently had a Strongly Held Conviction.

It worked out for my folks because my dad had grown up about a half hour from the gas station and was able to Gently Persuade the gentleman to pump some freaking gas. Who knows, maybe he had his shotgun in the trunk.

Other folks with NY plates would, presumably, be invited to pound sand.

Unless I'm misreading Sebastian's argument, he (Sebastian) would say the gas station owner was within his rights to deny my folks service.

If so, IMO that reading of things is going to lead to a crappy world pretty damned fast.

As a specific example, wedding cakes are, maybe, not so important. Being able to assume that you can avail yourself of goods and services that are, by all appearances, on offer to everyone else in the world, is actually kind of important. If we want to have anything like a reasonable common public life.

Unless I'm misreading Sebastian's argument, he (Sebastian) would say the gas station owner was within his rights to deny my folks service.

If so, IMO that reading of things is going to lead to a crappy world pretty damned fast.

The gas station owner *is* within his rights, it's not a "reading," it's the existing situation. That's what I understand from my lawyer friends and relatives (but inviting correction from others who are legally trained if correction is warranted).

"State of origin" is not a protected class under civil rights law. Just like sports fandom. The gas station owner could do that same thing today and I don't see what recourse your parents would have under the existing civil rights laws.

The system we have has grown out of the need to address the most egregious, systemic, and universal kinds of discrimination. I take that to mean that there just aren't enough people harmed by businesses in one state refusing to serve people from other states to make it worth the bother.

In a way, you are arguing for the abandonment of our entire edifice of civil rights law: i.e., for the elimination of any reliance on protected classes -- everybody gets served everywhere, unless they fail to wear a shirt or shoes in an establishment that requires them. (Or in my case, let's say, where snowmobiles would be banned from my restaurant's parking lot because they're noisy and stinky and I don't want them ruining the ambience.)

I mostly agree with you, although I suspect that the "shirts and shoes" class of exceptions would still allow plenty of room for disputes to arise. It's just driving me a little crazy that we can't seem to distinguish between "is" and "should be" in this discussion.

This Colorado bakery is one of a growing number of businesses raising First Amendment challenges to state laws prohibiting discrimination against LGBTQ people. To date, federal and state courts have uniformly and rightly rejected the arguments raised here: that the Free Speech Clause grants a vague class of “creative” businesses a license to discriminate against people simply on the basis of their sexual orientation, and that the Free Exercise Clause gives all businesses a right to discriminate based on their owners’ personal religious beliefs. The same result is warranted here.

The federal constitution simply does not provide commercial businesses a right to “pick and choose” customers in violation of state law... Enforcing content- and viewpoint-neutral
public accommodations laws to prevent commercial
businesses from refusing to serve customers because of their race, gender, religion, or sexual orientation does no harm to either free exercise or free speech rights...

Petitioners’ contentions to the contrary would open up a dangerous exemption, stretching far beyond the matter of one couple’s wedding cake. States cannot effectively fight discrimination in the commercial marketplace—or in employment, housing, or other contexts—if personal belief operates as a “law unto itself.”... Yet the exemption Petitioners seek under the Free Speech Clause would permit business owners holding racist, sexist, or otherwise discriminatory beliefs to summarily refuse service based solely on prospective customers’ identity, so long as their business activities fell within an imprecise “expressive” category. Petitioners’ proposed exemption thus risks licensing all manner of harmful discrimination—and risks once again subjecting millions of people to the mercy of business owners as to who is worthy of service. The First Amendment does not bar States’ efforts to combat the societal disintegration and economic balkanization caused by this kind of discrimination.

In a way, you are arguing for the abandonment of our entire edifice of civil rights law: i.e., for the elimination of any reliance on protected classes -- everybody gets served everywhere

Been following along...and see your point. So if I walk into the baker's shop and loudly declaim, "Homosexuality and the gay marriage is my religion, and I want a wedding cake for a gay marriage ceremony", then I get the cake, right?

But yes, if you want me, citizen, to subsidize shopkeepers, then I, citizen, "ought" to get to have a say in who gets served.

(But as a matter of actually existing civil rights law, I would concede your point.)

As to interstate commerce, Russell's parents would most likely be out of luck, cf. Atlanta Motel v.United States.

But yes, if you want me, citizen, to subsidize shopkeepers, then I, citizen, "ought" to get to have a say in who gets served.

get the IRS involved. put a list of societal classes on the biz tax forms. if you discriminate against classes X,V,R, you check the boxes. and in return, you get to pay an extra tax based on an estimated amount of sales not made given the number of people of class X,V,R in your area.

"As to interstate commerce, Russell's parents would most likely be out of luck, cf. Atlanta Motel v.United States."

I don't think that is correct at all. Back when restricting federal civil rights laws to limited businesses was a thing, restaurants and motels and gas stations were considered important to vindicate the right to travel across state lines. Which is a distinction that makes sense to me.

Y'all really need to be ranting and raving in a good way over there on the Alabama thread.

F' cakes.

We have some genuine heroes who need some accolades. The entire freaking country, including the cold states, need to rally round and give thanks and kudos, and whatever other celebratory tactics there are, to some very strong folks who rejected cultural tribal hate, and elected Doug Jones.

This is big, and if you're missing it, you're freaking betraying the solidarity for decency movement. Lose your political individuality tatoo, and take a moment to give thanks. By the way, if you deign to know anybody in AL, send them some love.

restaurants and motels and gas stations were considered important to vindicate the right to travel across state lines.

What if they wanted a box of Kleenex? Or a map? Or a pair of sunglasses?

Who cares, right? You won't starve, or die of exposure, if you don't get a box of Kleenex.

But what you end up with is a society where people have to know, or figure out, which freaking convenience store to go to to get a pair of sunglasses. Because if they go to the wrong one, they'll be denied service because they have Yankees hat on, or are short, or stutter, or are wearing a yellow shirt, or fall afoul of god knows what oddball Strongly Held Conviction has the proprietor in the grip of its nuttiness.

You're wearing a cotton shirt with a wool sweater! Haven't you read Leviticus 19?!? No map for you!

Not the end of the world, just the end of the public square.

Back in the day, and not even that far back, there was a publication called the Green Book. Full name "The Negro Motorist Green Book". It was used by black Americans who were traveling cross country by car to figure out where they could and couldn't stay, eat, buy gas, what towns to avoid altogether. It was profoundly FUBAR that such at thing was needed, but it was needed.

I don't want to live in a society where we need crap like that. I don't want "The Gay Engaged Couple's Green Book". Or "The Trump Supporter's Guide to Shopping In Cambridge MA". Or "The Red Sox Fan's Guide To Travel In Maine" (haha!).

Because it would be a crappy society. It wouldn't be a society at all, it would be a collection of insular cliques.

There needs to be some basis for basic common life, otherwise the social fabric is going to shred. And the bar for what is and isn't part of that needs to be lower than "you'll starve or die of exposure without it".

I don't really care about the wedding cake guy that much one way or the other. People believe all kinds of things. If he's operating on a cake-by-cake basis, custom order, with terms and conditions per deal, IMO he's free to bake for whoever he wants, and only whoever he wants.

If we start extending that prerogative to any and every kind of business short of restaurants and hotels, it's going to suck.

Russell I think you’re confusing a discussion about services with a discussion about selling goods. With very limited exceptions discrimination law under the federal law doesn’t allow discrimination against anyone for providing goods off the shelf. If they have the money, you have to sell it to them. There is a bunch of reasons for that (the expressive content is nil, the stream of commerce arguments are stronger, the travel arguments control). Services are different because they involve a lot more than just ringing people up at the cash register.

You seem to be saying that it is nearly impossible to make a distinction that we have in fact made just fine (and which you apparently didnt even notice until now).

Russell I think you’re confusing a discussion about services with a discussion about selling goods.

I understand the difference between providing services and selling goods. The discussion has covered a lot of cases, so I'm obliged to address a lot of cases.

Way upthread, you said "we need to think about having a better accommodation stance in the wedding cake case". In reply, I asked "How would that work?"

The answer is that it works by drawing lots and lots of lines, many of them somewhat arbitary. Discrimination based on gender is not allowed. Discrimination based on sexual preference is. Discrimination based on gender *identity* is... kind of a jump ball.

You appear to believe that the boundaries are actually quite crisp and easy to articulate and understand. I don't think they are. So, in practice, "How would that work?" ends up being a more complicated question than I think you recognize, or at least acknowledge.

Selling gas is arguably off the shelf. Fixing the car is arguably not. So, we can have a world where some dude has to sell my folks gas, but if they have a flat he doesn't have to repair it.

Selling clothes off the rack is arguably off the shelf. Tailoring them is arguably not. So, we can have a world where I can go into a store and buy a pair of pants but the store is not obliged to hem them.

As long as the reasons for refusing that stuff is not due to my skin color, race, national origin, or gender.

I'm sure there is a path toward pinning down all of these fine distinctions. I'm equally sure that path will include lots of arguments and lawsuits.

The question I have is where do we end up? Do we end up in a place where someone can be required to sell me gas, but not fix my flat because I have MA plates? Is that a place we want to be?

How does that work? I don't mind carving out exemptions for people who have strong convictions, I just want to know how we manage it, so that other folks don't end being annoyed, insulted, or abused.

Russell I think you’re confusing a discussion about services with a discussion about selling goods.

Sebastian, some of us are old enough to remember the days when, if you wanted to run a computer program, you went out and bought a computer to run it on. A good. Whereas today, you run it in the cloud. Use a service.

So to which protected class do russell's parents belong as they travel through GA with NY plates on their car?

None. Common carriers and public accommodations are a completely different issue.

Whom you're allowed to sell stuff to is the issue. If the gas station guy has to sell gas to russell's parents because of common carrier laws, why doesn't he have to sell gas to a black couple for the same reason?

But okay, if the issue of selling stuff is too complicated, can I refuse to rent apartments in my complex to people on the basis that they're Red Sox fans? Can I refuse to hire Red Sox fans?

“Whom you're allowed to sell stuff to is the issue. If the gas station guy has to sell gas to russell's parents because of common carrier laws, why doesn't he have to sell gas to a black couple for the same reason?”

Gack. They do have to sell gas to the black couple for the same reasons. That’s the whole point of public accommodations of the type needed for travel.

Part of this discussion seems to weirdly assume there is only one factor. But like always when balancing constitutional rights there tend to be a couple of things going on at once. Some types of businesses are under common carrier. Others because they just sell goods off the shelf.

Also we keep getting weird “hypotheticals” that are already actually the state of the world so I don’t understand how they are being brought in as if they were shocking. You already can choose not hire Red Sox fans. The tailor can already choose his customers. That’s already real—not some hypothetical vile world that might come to pass if the Supreme Court goes one way on the cake case.

Sebastian H: Also we keep getting weird “hypotheticals” that are already actually the state of the world so I don’t understand how they are being brought in as if they were shocking. You already can choose not hire Red Sox fans. The tailor can already choose his customers. That’s already real—not some hypothetical vile world that might come to pass if the Supreme Court goes one way on the cake case.

I'm the one who has brought some of these "weird hypotheticals" in. I never said they were shocking. In fact, quite the contrary, I brought them in precisely and explicitly to make the point that that's already the world we live in. (Also in an effort to clarify the reality in a context where someone could write this: As I understand it, antidiscrimination law covers protected classes, as defined by the EEO...White people are not a protected class.)

This is the second time you've referred to things I've written, without quoting directly and without citing me by name, and twisted them into something completely different from what I wrote. If I were the only one noticing that, I might react differently. But wj's comment here is a similar reaction to mine, in relation to the same exchange.

I'm pretty sure we're still talking at cross purposes about the gas station example, but whether you're twisting what I'm writing on purpose or in haste, this is a waste of time.

I apologize for not quoting better. It’s hard from my phone. And I’ll admit I clearly wasn’t understanding you as I thought you were raising things that you thought were currently illegal. So what were you trying to say with those then?

I think part of the problem is that we aren’t being clear between what issues are being raised as if they weren’t already legal and which ones aren’t. The gas station example took us in a weird direction because discriminating against license plates at a gas station is already illegal and was almost certainly already illegal at the time of the anecdote.

Assuming that this conversation goes forward it might be clearer to say things like “X Which I know is already legal but I don’t like” or “Y which I would think shouldn’t be illegal but is”. That way if we think you’re wrong about the current state of the law we can address that or if you’re right about the current state of the law we can talk about that.

I seem to have attributed the wrong way around on some the issues raised, and I apologize for that.

A couple comments above you wrote, I thought you were raising things that you thought were currently illegal. So what were you trying to say with those then?

I answered that question right in the comment you're responding to:

In fact, quite the contrary, I brought them in precisely and explicitly to make the point that that's already the world we live in.

Way upthread I wrote:

First of all, right now, legally (and the lawyers can correct me if this is wrong), I believe that you can actually refuse to serve anyone you please as long as it’s not on the basis of the person belonging to a protected category. I’m pretty sure that if I had a restaurant, I could refuse to serve Red Sox fans. Let’s just say. ;-) ["category" s/b "class"]

I've been trying to be as clear as I can about whether I'm talking about current reality or my opinion about how the world *should* be (about which I've actually said almost nothing).

The gas station example is still confusing, in that there seems to be an intersection of civil rights and common carrier issues that I don't understand. Not surprising; I'm not a lawyer, and though I've paid quite a lot of attention to, and done a fair amount of reading about, civil rights law, I know zip about common carrier law.

But I don't have the time or energy right now to try to ask the questions in a different way. Maybe later this evening.

I don’t think the gas station has anything to do with common carrier (though I might be wrong). I think it has to do with public accommodations necessary to vindicate the right to interstate travel or maybe just seller of undifferentiated goods. I’ll try to look up the cases more directly when I can. But I think those are the three areas where no discrimination on protected class is allowed (under federal law).

To be clear those are the three general areas regarding commerce. Other areas have their own law sometimes. Employment and housing are other areas where you can’t discriminate based on protected class, but those areas have totally different rationales so it isn’t usually fruitful to try to analyze them with the cake case because the laws don’t intersect very much.